A.rJSTI,v. TsxAf3 78711 

October 11, 1972 

Honorable Preston Smith Opinion No. M- 1232 

Governor of Texas 

State Capitol Building Re: Whether the Ft. Worth 

Austin, Texas 78711 City Ordinance conflicts 

with the State Constitution or statutes in its 

provisions for the 

regulation and licensing 

of bail bondsmen in the 

city municipal courts, 

Dear Governor Smith: and related questions? 

You have requested an opinion of the Attorney General of 

Texas in reference to the following questions: 

" 1 . Does the Fort Worth City Ordinance 

conflict with the Constitution and statutes 

of the State in a manner that would render 

the ordinance void in its entirety or in 

any part or parts because of inconsistency 

as prohibited by Article XI, Section 5 

of the State Constitution and Article 1165, 

V.A.T.C.S.? 

2. Does the Fort Worth City Ordinance 

provide additions to the Constitution and 

statutes of the State in a manner that 

would render the ordinance void in its 

entirety or in any part or parts because 

of inconsistency as prohibited by Article 

XI, Section 5 of the State Constitution 

and Article 1165, V.A.T.C.S.? 

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Honorable Preston Smith, Page 2 (M-1232) 

3. Does the Fort Worth City Ordinance 

in any manner whatsoever violate the Constitution or statutes of the State? 

4. Does the Fort Worth City Ordinance 

in any manner whatsoever violate the Constitution of the United States?" 

This proposed ordinance submitted with your request would 

be an amendment to Chapter 12 of the Fort Worth City Code (1964) 

by adding Sections 12-16 through 12-32. It is designed to regulate the entities which serve as sureties for compensation 

on bail bonds in the municipal courts of the City of Fort Worth. 

Lhder this ordinance the City of Fort Worth, which is a home 

rule city, will create a licensing commission to process applications by such sureties, pursuant to the criteria named in 

Section 12-21 of the ordinance. Exceptions to the license 

requirement are enumerated in Section 12-18, which categories 

comply with Articles 17.01 through 17.38, Vernon's Code of 

Criminal Procedure. A one hundred dollar annual license fee 

is required by this ordinance (Section 12-29), and certain 

conduct is prohibited (Section 12-32). A penal provision 

(SECTION 4) provides for a fine not to exceed two hundred 

dollars for violation of the ordinance. Our opinion is that 

the ordinance is a regulatory measure, and that the hundred 

dollar fee does not appear to be an unreasonable annual license fee as a matter of law. Our opinion is that there is 

no conflict between this ordinance and state or federal law 

which would invalidate any portion of the ordinance. 

Questions 1 through 3 may be analyzed together. 

Article XI, Section 5, of the Texas Constitution concerning cities with a population in excess of five thousand, 

requires that 

II . . . no charter or any ordinance passed under 

said charter shall contain any provision 

inconsistent with the Constitution of the 

State, or of the general laws enacted by 

the Legislature of this State; . . ." 

A similar prohibition is contained in Article 1165, Vernon's 

Civil Statutes. 

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Honorable Preston Smith, Page 3 (M-1232) 

The Texas Constitution, Article I, Section 11, provides in 

part that, "All prisoners shall be bailable by sufficient sureties, . . .' Rules for the posting of bail bonds are set out by 

the Texas Code of Criminal Procedure, Articles 17.01 through 17.38, 

Vernon's Code of Criminal Procedure. 

Article VIII, Section 1 of the Texas Constitution states 

that: 

II . . .[The Legislature] may also impose 

occupation taxes, both upon natural persons 

and upon corporations, other than municipal. 

doing any business in this State. . . . provided 

. . . that the occupations tax levied by any 

county, city or town for any year on persons or 

corporations pursuing any profession or business, 

shall not exceed one-half of the tax levied by 

the State for the same period on such profession or business." 

It is clear that under Article 1165, and Texas Constitution Article XI, Section 5, a home rule city cannot enact rules 

and regulations contrary to the Constitution and the general law. 

City of Austin v. Clendennen, 323 S.W.2d 158, (Tex.Civ.App., 

1959, error ref. n.r.e.). Nevertheless, a home rule citv such 

as Fort Worth can exercise any power not denied it by the Constitution or general statutes. Interstate Circuit, Inc. v. City of 

hllas, 247 F.Supp. 906 (N.D.Tex. 1965), affirmed 366 F.2d 590 

(5th Cir. 1965).-- 

In order to determine if there is a conflict between the 

ordinance and any statutory or constitutional provision, it is 

important to bear in mind that we should look to legislative acts 

not for grants of power to a city but only for limitations on the 

power available to cities. Forwood v. City of Taylor, 147 Tex. 

161, 214 S.W.2d 282 (1948). This stated in 

State v. City of La Porte, 386 S.W.2d 782 (Tex.Sup. 1965): 

II . . . The governing body of a city is not 

required to look to the Legislature for a 

grant of power to act. Such power is given 

by the Constitution. The governing body only 

looks to acts of the Legislature to ascertain 

if it has placed any limitations on the power 

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Honorable Preston Smith, Page 4 (h-1232) 

to act as granted by Article XI, Section 5. 

See Forwood v. City of Taylor, 147 Tex. 161, 

214 S.W.2d 282 (1948); Yellow Cab Transit Co., 

Inc. v. Tuck et al., Tex.Civ.App. (1938), 115 

S.W.2d 455, wr. ref.; City of Houston v. City 

of Magnolia Park, 115 Tex. 101, 276 S.W. 685 

(1925). . . ." (at p. 785). 

This doctrine is supported by the Supreme Court's decision in 

City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.Sup. 1964), 

where the Court notes a presumption in favor of a city's ability 

to enact ordinances unless there is a clear indication by the 

Legislature to the contrary. The Court said: 

" . . . Although the broad powers granted to 

home rule cities by the Constitution, Article XI, 

Section 5, Vernon's Ann. St., may be limited by 

acts of the Legislature, it seems that should the 

Legislature decide to exercise that authority, its 

intention to do so should appear with unmistakable 

clarity." 

In view of this reasoning there is no apparant conflict or 

any consistency between the ordinance in question and Articles 

17.01 through 17.38 of Vernon's Code of Criminal Procedure, Article XI, Section 5 of the Texas Constitution or Article 1165. The 

same holds true regarding Article I, Section 11 of the Texas 

Constitution as there is no indication that this ordinance will 

interfere with the sufficiency of sureties. 

Another aspect of this question however, concerns an occupation tax question. In addition to Article VIII, Section 1 

of the Constitution, supra, Article 1.09, Title 122A, TaxationGeneral, Vernon's Civil Statutes, reads: 

"NO city, county, or other political 

subdivision may levy an occupation tax levied 

by this Act unless specifically permitted to 

do so by the Legislature of the State of 

Texas. " 

Although the labels are often interchanged by various commentators, the Texas Supreme Court has consistently defined the difference between occupation taxes and licenses. Whereas occupation taxes, when authorized by the Legislature, are used primarily 

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Honorable Preston Smith, Page 5 (rl-1232) 

to raise revenue, the primary purpose 

regulation, and it must be reasonable 

of a license must be that of 

and not arbitrary. Hurt v. 

Cooper, 130 Tex. 433, 110 S.W.Zd 896 (1937); H. Rouw Co. v. Texas 

Citrus Commission, 151 Tex. 182, 247 S.W.2d 231 (1952). In comnlvinc with Article 1.09, supra, the Legislature has authorized 

;e;y few occupation taxes. '- Our opinion is that this license 

fee is a reasonable regulatory matter which in no manner conflicts 

with any statutory provisions concerning occupation taxes. 

There is relatively little federal law concerning the subject 

of this ordinance with which the city's action might encounter 

conflict. See Title 6, United States Code. The United States 

Constitution contains nothing directly on this point other than 

the Eighth Amendment, which would not conflict with this ordinance. 

The United States Supreme Court has long indicated that the individual states would retain power to resulate corporations actinc 

as sureties within those states. Fidelity and Deposit Company ofMaryland v. Commonwealth of Pennsylvania, 240 U.S. 319, 36 S.Ct. 

298 (1916). As indrcated by Interstate Circuit, Inc., supra, the 

federal courts do recognize the Texas constitutional and statutory 

provisions in this area. Therefore, in our opinion the Fort Worth 

City ordinance does not violate the Constitution of the United 

States in any manner. 

SUMMARY 

The Fort Worth City ordinance does not conflict 

with nor provide additions to the Constitution and 

statutes of the State in a manner that would render 

the ordinance void in its entirety or in any part 

or parts because of any inconsistency as provided 

by Article XI, Section 5 of the State Constitution 

and Article 1165, Vernon's Civil Statutes. Further, 

'The Legislature has authorized occupation taxes in Title 122 

A, Taxation-General, Vernon's Civil Statutes, on coin operated 

machines (Sections 13.02, 13.14); dealers in pistols (Section 19.0 

(7)); and operators of billiard tables (Section 19.01(10)). This 

also applies to certain liquor permittees (Article 666-15a(l), 

V.P.C.) and certain beer licensees ,(Article 667-3(h), V.P.C.). 

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Honorable Preston Smith, Page 6 (M-1232) 

this ordinance in no manner violates the Constitution 

or statutes of the State of Texas nor the Constitution 

of the United States. 

Prepared by E. Bruce Curry 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

John Banks 

Gordon Cass 

Bill Campbell 

Sam Jones 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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